On July 25, the House Appropriations Committee convened a mark-up for the Fiscal Year (FY) 2019 Appropriations for the Department of Homeland Security (DHS). By voice vote, the committee approved an amendment that exempts returning workers from the 66,000 statutory cap imposed on the H-2B guest worker visa program, providing much needed H-2B visa cap relief advocated by the horse industry and its allies. The amendment, offered by Congressional Horse Caucus Members Rep. Andy Harris, MD (R-MD) and Rep. Dutch Ruppersberger (D-MD), among others, applies to workers who have received guest worker visas during the previous two years. Additionally, the provision also establishes a visa allocation system that disburses work permits on a quarterly basis. Lawmakers believe that the quarterly system will create more flexibility for employers whose labor demands do not align with the semi-annual allocation system, whereby DHS awards permits on April 1 and October 1. The horse industry and its allies in the H-2B Coalition fight for a variety of flexibility measures, including a straight-forward increase in the visa cap, or generous exemptions from the statutory cap, such as those for returning workers.

Pointing to another flexibility measure, Rep. Harris (R-MD) released a statement explaining the importance of a provision that allocates visas on a “proportional” rather than a “winner take all” basis. Under this provision, DHS would award a portion of all timely, requested visas to all applicants, even in the event that “the higher limits authorized by [the] amendment are not enough to satisfy all the needs in a given year.” To view a copy of Rep. Harris’s statement, please click here: https://harris.house.gov/media/press-releases/house-appropriations-committee-approves-harris-language-repairing-h-2b-visa.

While the House spending bill advances the goal of effectively raising the H-2B visa cap, the Senate version of the bill doesn’t address the H-2B visa issue, setting up an item to be negotiated during a House and Senate conference. Although lawmakers intend to finalize their spending measures before the current FY ends on September 30, this is a deadline that Congress rarely meets. As in years past, Congress may pass a series of “continuing resolutions” to fund the federal government. AHC will keep you posted on developments related to the H-2B measure as the FY2019 appropriations process moves forward. To view a copy of the three-page amendment, please click here: http://www.horsecouncil.org/wpcontent/uploads/2018/07/HARRMD_037_xml-offered-2-1.pdf.

If you’d like more information related to the guest worker issue, including ongoing grassroots outreach from the horse industry, please contact Bryan Brendle at bbrendle@horsecouncil.org or 202-296-4031.

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Considerations for filing an H-2B petition per the new regulation.

Following several weeks of tense discussions between Congress and the Trump administration, the Department of Homeland Security published a final rule May 31 in the Federal Register authorizing issuance of 15,000 additional H-2B visas for the remainder of fiscal year 2018.

As reported this spring, Congress authorized the DHS to raise its cap on H-2B temporary worker visas from the current cap of 66,000 to 129,500 visas for FY2018 within the context of the omnibus appropriations law passed in late March. DHS states that by issuing 15,000 extra H-2B visas—significantly below the additional 63,500 authorized by the FY2018 omnibus—the agency will prioritize employers who demonstrate that they would suffer “irreparable harm” to their business unless they are able to hire additional seasonal workers during the summer and fall 2018 seasons. DHS further states that it seeks to avoid possible abuse of the H-2B program by limiting the pool of extra visas to 15,000.

According to the rule, DHS punted the broader temporary worker shortage issue to Congress, urging lawmakers to reform the Immigration and Nationality Act, which establishes the H-2B visa program. During the course of the extended back-and-forth discussions between the legislative and executive branches this spring, DHS claims that only congressional action can provide long-term certainty with respect to the issuance of more guest worker visas. According to federal regulators, addressing worker shortages through the annual appropriations process fails to create certainty, undercutting the ability of the business community to plan long-term.

Since moving forward with a limited cap increase, DHS’s United States Citizenship and Immigration Service has outlined some practical considerations for filing an H-2B petition per the new regulation:

An employer “must meet all existing H-2B eligibility requirements,” which includes receipt of “an approved Temporary Labor Certification from the Department of Labor that is valid for the entire employment period stated on the petition.” DHS reminds employers that “the employment start date on the petition must match the employment start date on the TLC, even if that date has passed.”

Employers must also “conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018.”

A business must “submit an attestation on Form ETA 9142-B-CAA-2 in which the petitioner affirms, under penalty of perjury, its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year.” The agency provides Form ETA 9142-B-CAA-2 Instructions to properly complete the attestation.

DHS further states that it “will not accept” an “expired ETA 9142-B-CAA from fiscal year 2017.” The agency will reject any “petition that does not include the new ETA 9142-B-CAA-2 attestation form for fiscal year 2018.”

Recognizing the time constraints associated with the application process, DHS states that it will “adjudicate” applications within 15 calendar days for employers opting for “premium processing,” and 30 days for standard applications. To learn more about how to fast-track an H-2B visa application, please go to: https://www.uscis.gov/forms/how-do-i-use-premium-processing-service.

The unprecedented demand for guest worker visas this year will create a narrow time frame in which to submit an application.

As details unfold related to practical considerations associated with the new rule, American Horse Council will continue to inform members about developments and helpful notes for members who are considering moving forward with summer applications.

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Bill could double number of visas available.

Congress on the morning of March 23 passed a Fiscal 2018 omnibus appropriations bill, which includes language that could almost double the number of H-2B visas available, potentially improving a dire situation for Thoroughbred trainers who depend on these visas for the industry’s sizable foreign temporary workforce.

The bill provides the Secretary of Homeland Security the authority to raise the cap on H-2B visas if the Secretary, in consultation with the Department of Labor, determines there is an economic need.

If the omnibus spending bill is signed into law by President Trump, the total number of H-2B workers that may enter the U.S. during fiscal 2018, which ends on Sept. 30, 2018, will then be capped at 129,547. If fully implemented, this new cap would be equal to the number of new and returning H-2B workers admitted to the U.S. in fiscal 2007, which is the fiscal year when the highest number of H-2B foreign temporary workers participated in the H-2B program.

“Congress provided the Secretary of Homeland Security with the same discretionary power to increase H-2B limits as part of the 2017 omnibus spending bill passed in May of last year,” said National Thoroughbred Racing Association President and CEO Alex Waldrop. “Unfortunately, the Secretary did not make the necessary finding of economic need until July of last summer when it was too late for most employers to take advantage of the increased number of H-2B visas before the end of the fiscal year.”

The NTRA, through its membership in the H-2B Workforce Coalition, will urge the Administration to swiftly implement this H-2B cap relief and will continue to encourage Congress to pass permanent H-2B cap relief.

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An industry-supported provision that could allow additional foreign, seasonal H-2B visa workers made it through Congress as part of the government-funding bill signed by the Senate May 4.

As the House of Representatives approved the spending bill earlier this week, it now awaits an expected quick signature from President Donald Trump.

Currently only 66,000 H-2B seasonal work visas are allowed to be granted this year, but a provision in the spending bill, which funds the government through the fiscal year that ends in September, would give the Secretary of Homeland Security, in consultation with the Secretary of Labor, the authority to nearly double the H-2B cap when it’s determined there is an economic need.

National Thoroughbred Racing Association president Alex Waldrop said the NTRA will now work with the administration to get the H-2B provision implemented.

Horse racing is just one of many industries that relies on the H-2B visa program, joining businesses such as landscaping and seasonal resorts.

Congress in 2016 failed to renew the “returning worker exemption” that permits H-2B workers from the previous three years with clean records to enter the country again without counting against the 66,000 cap. That exemption had effectively raised the number of workers under H-2B from 66,000 to approximately 190,000.